Saturday, January 19, 2013

UNC & A Credulous Press

Last year, in a post over at Minding the Campus, I examined how the University of North Carolina
responded to the Obama administration’s “Dear Colleague” letter, which required all colleges receiving federal assistance to change their sexual
assault procedures. The new procedures enhance the likelihood of conviction, by
using a “preponderance of evidence” [50.1%] standard and by introducing double
jeopardy through an accuser’s right to appeal not-guilty findings.

Even before these mandated changes, the system that
previously existed at UNC already made a mockery of due process rights for the
accused. Unless the accuser simultaneously filed a criminal complaint, the
accused student couldn’t be represented by counsel in the hearing. (“Neither a licensed attorney nor
a person who has passed a state bar examination may serve as the investigator
or defense counsel or be present during proceedings.”) When criminal charges
were filed, a lawyer could be present but not speak to the hearing panel or
cross-examine witnesses. And the hearing panel had the right to obstruct an
effective defense by restricting exculpatory evidence only to material that “does not
otherwise infringe the rights of other students.”

In response
to the “Dear Colleague” letter, UNC further weakened the due process protections
for students accused of sexual assault—and only for these students. It set up a
two-tier student judicial system. Students accused of all other offenses would
continue to be tried by the school’s Student Honor Court and according to a
standard of beyond a reasonable doubt. But students accused of sexual assault (a
far more serious allegation than most student judicial questions) would be adjudicated
under a far lower threshold (preponderance of evidence). And the claims would
no longer be heard by the Student Honor Court but by specially trained evaluators.

Celebrating
the new system in a fawning interview with InsideHigher Edwas an assistant dean of students, Melinda Manning. Manning said
the existing system (that is, the system that denied students accused of sexual
assault the right to be represented by counsel in their hearing) was too accuser-friendly, since the Student
Honor Court improperly required “victims [not ‘alleged victims’ or ‘accusers’] to be judged
by a roomful of peers.”

Ponder that
statement for a minute.

To reiterate:
last April, UNC
took a system that already denied basic due process to accused students—and
made it more likely that accused
students would be convicted, by lowering the threshold for a guilty finding in
sexual assault cases and only sexual assault cases, and by ensuring that
students accused of sexual assault wouldn’t be evaluated by the campus equivalent
of a jury of their peers.

Manning
is back in the news—as a supporter of a federal civil rights claim filed by current
and former UNC students who assert they were victims of sexual assault but that
the system described above so failed to protect their rights that it created a
hostile campus environment under Title IX. “My original plan was just to walk away and forget about
everything that’s happened,” Manning (the opponent, again, of allowing students
accused of sexual assault to be judged by a jury of their peers) e-mailed the Daily Tar Heel. “But I love Carolina too
much to do that. I can’t assume that someone else will fix these problems
without my input.”

Indeed.

The complaint
itself isn’t public, but was seen by the Daily
Tar Heel. Writes reporter Caitlin McCabe (wholly uncritically), “The complaint is rich with stories of
hostility, including the administration’s failure to train Honor Court members
who facilitated sexual assault hearings, to treat both the accused and accusing
student fairly and to keep survivors informed.” McCabe’s article also
speaks of one of the complainants working on behalf of herself and “65 sexual
assault survivors” at UNC. The word “alleged” does not appear in McCabe’s
article: as presented by the DTH,
each of these 66 accusers was, in fact, victim of a violent crime. The article
contains no mention that any of these complaints actually resulted in a
conviction (or even a trial).

McCabe did not
quote from any defense attorneys or campus civil liberties groups (such as
FIRE) in her article.

In the N&O, reporter
Gloria Lloyd likewise declines to use the phrases “alleged victims” or “accusers,”
and instead reports as fact that 66 rapes occurred. “The students say,” she
writes, “they are sexual-assault victims and that the university mishandled
their cases by not believing or supporting them or by accusing them of being at
fault in their attacks.”

Lloyd does not
explain how “not believing” a claim, in and of itself, could constitute mishandling
of a case. Even the pro-accuser OCR has never maintained that a finding of not
guilty (that is, “not believing” the accuser) indicates a problem with the
process.

Lloyd did not
quote from any defense attorneys or campus civil liberties groups (such as
FIRE) in her article.

The title of a Huffington Postarticle by Tyler Kingkade is “University Of North Carolina
Routinely Violates Sexual Assault Survivor Rights, Students Claim.” The article
seems to speak as if there’s no question that each rape occurred, noting that
the complaint was filed by two “survivors” and “64 other victims.” Oddly, at
other points Kingkade describes accused students as “alleged rapists” who
committed “alleged abuse.” How a “victim” is produced by a rape that remains
only “alleged” Kingkade does not reveal.

Unlike Lloyd and McCabe, Kingkade does reference—obliquely—the
UNC procedures (though he doesn’t discuss the rules against an accused student
having representation in the hearing, or the low threshold for a guilty
finding), merely noting that the Honor Court no longer is allowed to hear
cases. He then quotes from a UNC student referencing the change (designed to make
convictions more likely) as perpetuating a “culture of silence.”

Kingkade at least reached out to someone beyond the ranks of
accusers and their supporters. He interviewed Student Press Law Center attorney
Adam Goldstein, who astutely noted that “law enforcement and the adjudication
of rape cases in general does not lend itself to amateurs.”

The most
striking aspect of both the DTH and
the N&O articles came in their decision
not to describe, in any way, the procedures that supposedly treated these 66
rape victims unfairly. How could any DTH
or N&O reader know, for instance,
that a process that’s supposedly indifferent to the suffering to rape victims
in actuality denies accused students the right to counsel, or allows conviction
on a 50.1% threshold? The HuffPost
article does, briefly, mention UNC procedures, but only to bizarrely imply that
the 2012 changes perpetuate a culture of silence.

Including
the necessary procedural context, of course, would have dramatically altered
the uncritical acceptance about the facts of the complaint that the reporters
brought to their articles. Given their uncritical acceptance, however, each
buried the lede: the major issue would seem to be the discovery that the seemingly
placid UNC campus is actually a center of violent crime. According to the DTH, the N&O, and Huffington Post,
there were at least 66 sexual assaults at the University of North Carolina over
the past six years—an average of 11 sexual assaults per year. (The articles
reference 2007 as a starting date for the complaint, although they’re not
entirely clear on this point.) And, again, each article uses wording that indicates
these violent crimes definitely occurred—“survivors” and “victims,” not “alleged
victims” and “accusers.”

Accordingto FBI crime statistics during this period, Chapel Hill is listed as having had
9 rapes in 2008, 14 rapes in 2009, 11 rapes in 2010, and 7 rapes in 2011—for an
average of 10.3 per year. (Figures for 2007 and 2012 aren’t available.) In
short, comparing FBI stats to the figures presented uncritically by the DTH, the N&O, and HuffPost, everysexual assault in Chapel Hill over the past several years has
occurred to a UNC student. That’s an extraordinary development, a suggestion
that the campus is a virtual hotbed of violent crime in an otherwise utterly
placid city.

Or,
perhaps, could it be that the statistics presented uncritically by the DTH, the N&O, and HuffPost
deserved a bit of journalistic skepticism—and that a system that denies basic
due process to accused students can’t uncritically be described as mistreating
accusers?

7 comments:

Anonymous
said...

Manning is a double tar-heel as graduate of UNC and UNC law school. Maybe she knows NC lawyers too well to allow them near impressionable student court members. The accused will be left with the Bart Simpson defense, " I didn't do it, you didn't see me do it, you can't prove a thing."

This uncritical acceptance of one side of the sexual assault story mirrors what happened at the Air Force Academy in 2004. There was virtually no media challenge of the claim that stories of rape and sexual assault were ignored by the school leadership, despite these reports being thoroughly investigated (and dismissed as fanciful or unprovable) by military criminal investigators and attorneys. The end result was the smearing of a student body and institution that was, according to DOJ statistics, one of the safest in the country for women.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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